960 F.

2d 975
60 USLW 2750, 3 NDLR P 17

John D. ELLIOTT, C. Leonard Davis, Plaintiffs-Appellants,

The Atlanta Union Mission, d/b/a The Potter's House, Plaintiff,
v.
The CITY OF ATHENS, GEORGIA, and the Mayor and
Council of
the City of Athens, Georgia, Dwain P. Chambers, Miriam
Moore, Harry Sims, Cardee Kilpatrick, Kathy Hoard, Linny
Bailey, Mac Coile, Carolyn Reynolds, Gwen O'Looney and
Calvin Bridges, Defendants-Appellees.
No. 91-8147.

United States Court of Appeals,

Eleventh Circuit.
May 19, 1992.

Bradley S. Wolff, Arrington & Hollowell, P.C., Atlanta, Ga., for

plaintiffs-appellants.
David K. Flynn, Irving Gornstein, U.S. Dept. of Justice, Washington,
D.C., for amicus U.S. Dept. of Justice.
Frank E. Jenkins, Kirk R. Fjelstul, III, Jenkins & Eells, Atlanta, Ga., for
defendants-appellees.
Appeal from the United States District Court for the Middle District of
Georgia.
Before KRAVITCH, ANDERSON and BIRCH, Circuit Judges.
ANDERSON, Circuit Judge:

This case presents a challenge to a local zoning ordinance of the City of Athens,
Georgia, pursuant to the 1988 amendments to the Fair Housing Act, 42
U.S.C.A. 3601, et seq. (hereinafter referred to as the "FHA" or the "Act" ).

Appellants seek to establish a group home for recovering alcoholics in an area

of Athens zoned for single-family occupancy. The district court held that there
was no violation of the FHA, and appellants appealed.
I. FACTS
2

Appellants, John D. Elliott and C. Leonard Davis, are owners of a single lot
located at 490-490 1/2 Ruth Street in Athens, Georgia, which contains two
detached houses. Appellants sought to sell the property to The Potter's House, a
division of the Atlanta Mission, for use as an alcohol and drug rehabilitation
center. The sale was contingent on obtaining approval for the proper zoning to
accommodate The Potter's House.

The City of Athens, Georgia, is divided into various zoning districts with local
ordinances defining the permitted uses for each zone. Within the city limits,
there are three types of single-family residential districts (RS-10, RS-15, and
RS-20), two types of multi-family residential districts (RM-1 and RM-2), and
several types of general residential, commercial, industrial, and governmental
districts.

The property at issue is located in an area zoned RS-10 for single-family use
pursuant to the local ordinance.1 Under the ordinance, a family is defined as:

5 (1) or more persons occupying a single dwelling unit, provided that unless all
One
members are related by blood, marriage or adoption, no such family shall contain
over four (4) persons. Domestic servants employed on the premises may be housed
on the premises without being counted as a separate family or families. In addition, a
related family may have up to two (2) unrelated individuals living with them. The
term "family" does not include any organization or institutional group.
6

Athens, Ga., Code 9-1-4 (1987). Thus, under the ordinance an unlimited
number of related persons may reside together, while a maximum of four
unrelated individuals may occupy a single residence. Although the zoning
ordinance permits only one single-family structure per lot, a grandfather clause
allows the two structures on the Ruth Street property to remain as they were
built prior to the adoption of the ordinance. As a result, two "families" or a
maximum of eight unrelated persons are permitted to reside on the property.

The City of Athens adopted its definition of "family," which restricts the
number of unrelated persons who may live together, in order to regulate the
large student population from the University of Georgia campus located in
Athens and to protect the single-family character of the neighborhoods

surrounding the university. The City was attempting to prevent the adverse
effects that can occur when an area increases its population density because of
a large demand for rental apartments for students. The City was concerned
particularly with overcrowding, traffic, noise, and the excess demand on city
services such as transportation and water.
8

In this case, the proposed purchaser of the Ruth Street property, The Potter's
House, operates an alcohol and drug rehabilitation center for men at its farm
facility in Jefferson, Georgia. The male residents of The Potter's House are
employed in one of the four stores operated by The Potter's House or in some
part of the farm operation. Reverend Jack Lindsay, director of The Potter's
House, sought to purchase the Ruth Street property for use as a group-residence
home, or "half-way" house, for men who had finished the program at the farm
facility but were not yet ready to live on their own. The Athens residence home
would thus serve as a second stage in the rehabilitation process, providing
structure and support to those program participants who had completed the first
part of the program.

The Potter's House planned to accommodate twelve male program participants 2

and at least one staff member at the Ruth Street property. Thus, the planned
occupancy was in excess of the eight permitted residents under the ordinance.
The program participants would be employed outside the property and would
be subject to program rules prohibiting the use of alcohol and overnight female
visitation. These participants would pay $75.00 per week in exchange for their
food, clothing, shelter, and supervision.

10

In order to carry out their project, appellants approached the City of Athens
planning department to have the property rezoned to multi-family designation
which would permit the proposed use for the half-way house. The planning
department advised appellants that the proposed use of the Ruth Street property
would be considered, under a "similar use" provision, as a boarding house.3
Members of the planning department then studied the impact the proposed
zoning change would have on the neighborhood and the demand for municipal
services. While the planning department determined that the proposed group
home would not burden the provision of municipal services such as
transportation, water, and sewage, the department nonetheless recommended
denial of the proposed change, stating as its reasons that the rezoning would set
a negative precedent for the neighborhood and would constitute spot zoning.

11

Thereafter, the appellants requested that the City either issue an interpretation
of the current ordinance which would permit the intended use under the current
definition of "family" or amend the ordinance so that it would conform to the

provisions of the FHA amendments.

12

After the City failed to issue the requested interpretation of the current
ordinance or to amend the ordinance, the appellants instituted suit in the district
court on November 6, 1989. Appellants sought declaratory and injunctive relief
on the grounds that the City's actions violated the Fair Housing Act and their
rights of substantive due process and equal protection.4 More particularly,
appellants alleged that handicapped persons were denied the opportunity to
reside within single-family residential neighborhoods in the City of Athens,
Georgia, and that the City refused to make reasonable accommodations in its
rules, policies, practices, or services, when such accommodations may be
necessary to afford handicapped persons equal opportunity to use and enjoy a
dwelling. See 42 U.S.C. 3604(f).

13

After a bench trial, the court entered judgment against the appellants. The court
held that the City of Athens had set reasonable restrictions on the maximum
number of unrelated persons who may occupy a single dwelling unit and,
therefore, is exempt from the instant FHA claim under 42 U.S.C. 3607(b)(1).
In addition, the court held that appellants had not established a prima facie case
of discriminatory effect. The district court did not address the "reasonable
accommodations" issue. On appeal, appellants challenge the district court's
conclusions regarding their FHA claims. Because we conclude that the Athens
ordinance falls within the exemption contained in 3607(b)(1), we need not
address the issues of discriminatory effect and "reasonable accommodations."

II. DISCUSSION
A. Overview of Fair Housing Act and Exemptions
14
15

The Fair Housing Act, 42 U.S.C. 3601 et seq., enacted as Title VIII of the
Civil Rights Act of 1968, was designed to prohibit discrimination on the basis
of race, color, religion, or national origin in the sale, rental, and financing of
housing and to assure fair housing practices. In 1974, sex was added as a
protected class but otherwise the statute remained basically unchanged until
1988. See 42 U.S.C. 3604(a). In 1988, Congress amended the Fair Housing
Act to extend its protection to handicapped persons. Fair Housing Amendments
Act of 1988, P.L. No. 100-430, 102 Stat. 1619 (1988) ("FHAA" ). Congress
recognized that discrimination against the handicapped is "most often the
product, not of invidious animus, but rather of thoughtlessness and indifference-of benign neglect." Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 717, 83
L.Ed.2d 661 (1985). The House Report states:

The Fair Housing Amendments Act, like Section 504 of the Rehabilitation Act of
16
1973, as amended, is a clear pronouncement of a national commitment to end the
unnecessary exclusion of persons with handicaps from the American mainstream. It
repudiates the use of stereotypes and ignorance, and mandates that persons with
handicaps be considered as individuals. Generalized perceptions about disabilities
and unfounded speculations about threats to safety are specifically rejected as
grounds to justify exclusion.
17

H.R.Rep. No. 711, 100th Cong., 2d Sess. 18, reprinted in 1988 U.S.C.C.A.N.
2173, 2179 [hereinafter "House Report" ]. In general, the Fair Housing Act
makes it unlawful

18 To discriminate in the sale or rental, or to otherwise make unavailable or deny, a

(1)
dwelling to any buyer or renter because of a handicap....
19 To discriminate against any person in the terms, conditions, or privileges of sale
(2)
or rental of a dwelling, or in the provision of services or facilities in connection with
such dwelling, because of a handicap....
20

42 U.S.C. 3604(f)(1) and (2).

21

The FHA, however, contains a number of exemptions, which, if applicable,

remove the alleged violation from the coverage of the Act. See 42 U.S.C.
3604 ("except as exempted by section[ ] ... 3607 of this title, it shall be
unlawful...." ). In this case, appellees claim that the exemption relating to
maximum occupancy limitations is applicable. This exemption provides:
"Nothing in this subchapter limits the applicability of any reasonable local,
state, or federal restrictions regarding the maximum number of occupants
permitted to occupy a dwelling." 42 U.S.C. 3607(b)(1).

22

While we conclude that the exemption applies in this case, 5 we note that any
exemptions contained in the Act are to be construed narrowly. See United
States v. Columbus Country Club, 915 F.2d 877, 883 (3d Cir.1990), cert.
denied, --- U.S. ----, 111 S.Ct. 2797, 115 L.Ed.2d 971 (1991); United States v.
Hughes Memorial Home, 396 F.Supp. 544, 550 (W.D.Va.1975) ("In view of
the Supreme Court's holding that the Fair Housing Act must be accorded a
generous construction, the general principle requiring the strict reading of
exemptions from the Act applies here with even greater force.") (citation
omitted). In fact, none of the few courts that have considered the exemptions
have found them applicable. See, e.g., United States v. Columbus Country
Club, 915 F.2d 877(3d Cir. 1990), (religious organization exemption and
private club exemption); United States v. Hughes Memorial Home, 396 F.Supp.

544 (W.D.Vir.1975) (religious organization exemption); Park Place Home

Brokers v. P-K Mobile Home Park, 773 F.Supp. 46 (N.D.Ohio 1991) (housing
for older persons exemption); Lanier v. Fairfield Communities, Inc., 776
F.Supp. 1533 (M.D.Fla.1990) (housing for older persons). Acknowledging the
narrowness of the exemption, we turn to 3607.
B. Maximum Occupancy Limitation Exemption
23

In this appeal, appellants present only two arguments to support their position
that the exemption is inapplicable: first, appellants argue that the ordinance is
not a maximum occupancy limitation because it does not apply to all occupants,
but only to those occupants who are unrelated; and second, appellants argue
that the exemption does not apply because the ordinance is unreasonable.

24

1. The Athens Ordinance is a Maximum Occupancy Limitation

25

Appellants argue that the district court erred in holding that the ordinance falls
within the exemption contained in 42 U.S.C. 3607(b)(1). Appellants argue
that the ordinance at issue cannot be characterized as a maximum occupancy
limitation within the meaning of 3607. Appellants urge that 3607(b)(1)
pertains only to restrictions setting a "maximum number of occupants" and that
the ordinance in this case does not set an absolute maximum because there is no
limit placed on the number of family members who may reside together; here
the limitation is only on unrelated persons. Appellants suggest that the only
maximum occupancy limitation that Congress contemplated was a limitation on
the number of persons per square foot of dwelling space. Such a limitation
would apply to all persons living together, whether related or not. In support of
their argument, appellants cite the following passage of the House Report,
stating that the maximum occupancy limitation exemption is:

26 intended to limit the applicability of any reasonable local, State, or Federal

not
restrictions on the maximum number of occupants permitted to occupy a dwelling
unit. A number of jurisdictions limit the number of occupants per unit based on a
minimum number of square feet in the unit or the sleeping areas of the unit.
Reasonable limitations by governments would be allowed to continue, as long as
they were applied to all occupants, and did not operate to discriminate on the basis of
race, color, religion, sex, national origin, handicap or familial status.
27

House Report at 31; 1988 U.S.C.C.A.N. at 2192 (1988) (emphasis added).

28

In addressing appellants' argument that the ordinance restricts only unrelated

occupants, cases that examine discrimination, under a constitutional analysis

rather than under the FHA, are helpful. In Moore v. City of East Cleveland,
Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), the Supreme Court
held that an ordinance that limited occupancy to members of a single family,
but that defined family so narrowly that a grandmother was not permitted to
live with her grandson, violated the Due Process Clause of the Fourteenth
Amendment. In reaching its decision, the Court emphasized its reasons for
protecting family living situations:
29 decisions establish that the Constitution protects the sanctity of the family
Our
precisely because the institution of the family is deeply rooted in this Nation's
history and tradition. It is through the family that we inculcate and pass down many
of our most cherished values, moral and cultural.
30

431 U.S. at 503-04, 97 S.Ct. at 1938 (footnotes omitted).

31

Moore distinguished Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct.

1536, 39 L.Ed.2d 797 (1974), because the zoning ordinance there affected only
unrelated individuals, and did not limit the number of family members
permitted to live together. In Belle Terre, the Supreme Court rejected a
constitutional challenge to a zoning ordinance which limited single family
dwellings to a maximum of two unrelated persons or to any number of persons
related by blood, adoption or marriage. Six students at a nearby college sought
to live in a house together and were denied permission. The Supreme Court
held that the zoning ordinance was rationally related to legitimate interests
relating to density, traffic, and quiet, open spaces for families.

32

Reading Belle Terre and Moore together, it is apparent that Supreme Court
precedent sanctions zoning limitations based upon the number of unrelated
persons living together as a means of furthering the state's legitimate interest in
controlling density, notwithstanding the absence of a similar limitation on
related persons. In light of this legal reality, and in light of the prevalence of
zoning regulations which limit unrelated persons without a simultaneous
limitation upon related persons, see Moore, 431 U.S. at 513-21, 97 S.Ct. at
1942-47 (Stevens, J., concurring),6 we decline to accept appellants' construction
of congressional intent. We do not believe that Congress intended that the
maximum occupancy limitation exemption would apply only to a limitation on
the maximum number of persons per square foot of dwelling space. A careful
reading of the legislative history demonstrates that Congress was merely giving
examples of the type of restrictions on occupancy that would be reasonable. See
House Report at 31; 1988 U.S.C.C.A.N. at 2192 ("A number of jurisdictions
limit the number of occupants per unit based on a minimum number of square
feet in the unit or the sleeping areas of the unit.") (emphasis added). The list of

reasonable restrictions listed in the House Report is not meant to be exhaustive.

33

In the instant case, the City of Athens was attempting to prevent overcrowding
in the area surrounding the university without restricting family members
unnecessarily. At trial, the City presented evidence that limiting unrelated
individuals was the most workable solution in order to maintain the residential
character of the neighborhood. The City felt that a restriction based on square
footage, applicable to both related and unrelated persons, would not be feasible
because too low a number would cause a family to move if a child were born
while too high a number would defeat the ability of the City to protect singlefamily neighborhoods.

34

Our reasoning finds support in Doe v. City of Butler, Pa., 892 F.2d 315, 321
(3d Cir.1989). There, the Third Circuit concluded that a zoning regulation was
rationally related to legitimate state interests in controlling density,
notwithstanding the fact that the regulation limited to six the number of
unrelated persons who could occupy a single dwelling unit while imposing no
limitation upon the number of related persons. The court rejected the argument
that the zoning restriction was not related to density control because there were
no limits placed on the occupancy of related persons. Applying reasoning
similar to our own, the Third Circuit stated: "If the absence of an occupancy
limitation on the members of a family who can live together is boot-strapped
into the argument that therefore there can be no occupancy limitation for
unrelated persons living together, there could never be such an occupancy
limitation and Belle Terre would be meaningless." 892 F.2d at 321. In other
words, Moore and Belle Terre, read together, indicate that a feasible method of
controlling density is to place occupancy limitations on unrelated persons but
not on related persons.

35

Having concluded that the Athens zoning restriction is a maximum occupancy

limitation, we turn to appellant's argument that the Athens ordinance is
unreasonable.
2. Reasonableness of the Athens Ordinance

36

The 3607(b)(1) exemption applies only to reasonable restrictions regarding

the maximum number of occupants permitted to occupy a dwelling. Appellants
argue that the Athens, Georgia, ordinance is unreasonable because it has a
disparate impact on handicapped individuals. In determining the reasonableness
of the ordinance, this court must strike a balance between a municipality's
interest in maintaining the residential character of a particular area and the

interests of the handicapped in remaining free from a zoning restriction having

some disparate impact.7 Courts have long recognized that local governments
have broad power in zoning. See Village of Euclid, Ohio v. Ambler Realty Co.,
272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926) ("[B]efore [a
zoning] ordinance can be declared unconstitutional, [it must be shown to be]
clearly arbitrary and unreasonable, having no substantial relation to the public
health, safety, morals, or general welfare.").
37

We turn then to the evidence of discrimination adduced by appellants at trial.

The only evidence of disparate impact8 upon handicapped persons adduced by
appellants was the fact that appellants' proposed use for handicapped persons
was rejected and the testimony of Reverend Lindsay that a group home for
recovering alcoholics in Athens, Georgia, could not be economically feasible
with fewer than 12 residents. There was no attempt to establish that the
ordinance had a harsher effect on handicapped persons wanting to live in group
homes than on college students or other non-handicapped persons desiring to
live in group homes. While we assume arguendo that the ordinance had some
disparate impact upon handicapped persons,9 we conclude that the evidence of
disparate impact upon handicapped persons is extremely weak.

38

Weighed against the foregoing rather slim evidence of disparate impact upon
handicapped persons are the City's very substantial interests in controlling
density, traffic, and noise in its single family residential districts, and in
preserving the residential character of such districts. The City's purpose in
adopting the zoning restriction at issue was to control the large University of
Georgia student population. The City adopted its definition of "family" in the
ordinance in order to protect the character of single-family neighborhoods and
regulate the negative effects emanating from the student population such as
overcrowding, traffic, and noise.

39

At trial, the City presented the testimony of Mr. Leon Eplan, a land use planner
and currently the Commissioner of Planning and Development for the City of
Atlanta, Georgia. Eplan testified about the effects that a large student
population can have on the surrounding residential neighborhood absent
measures aimed at restricting occupancy. Eplan cited the Home Park area
surrounding Georgia Tech University in Atlanta, Georgia, as an example of an
area that has gone from being primarily residential to an area that has increased
in density, is primarily rental property, and is no longer suitable for singlefamily dwellings because of the increased noise and traffic. As the student
population grew, the residents found it profitable to rent to students. At the time
that this demand for off-campus housing grew, there was no city ordinance in
place that would limit the density in the area. Thus, the neighborhood has

changed its character dramatically over the years.

40

As noted above, and as the district court found, see District Court Opinion at 7,
the most practical means of accomplishing the City's legitimate interests was a
limitation on the number of unrelated persons permitted to occupy a single
dwelling. The Athens restriction has the following primary effects in the
affected single family residential districts: (1) to control the number of college
students who may rent a single dwelling; (2) to exclude boarding houses; and
(3) to exclude fraternity and sorority houses. All are clearly legitimate and
serve important interests of the City. In addition, of course, the restriction had
the incidental effect of excluding group homes such as the one proposed by
appellants, at least those which cannot be economically operated with the
permitted number of residents.

41

In considering whether the City's legitimate interests outweigh the disparate

impact upon handicapped persons, it is also relevant that there are other areas
in the City that would be available for group homes. The City presented
evidence at trial that such a group home would be permitted to operate in the
following zones: R.M. 1 and R.M. 2 (both multi-family residential zones); O.I.
(office institutional); O.I.B. (office institutional and limited commercial), L.B.
(local business); G.B. (general business), C.B.D. (central business district), and
H.B. (highway business). R2-168-174. Thus, it appears that group homes of the
kind appellants propose would be permitted in other residential areas of the
city, as well as non-residential areas.

42

The Athens ordinance on its face does not draw a line between handicapped
individuals and non-handicapped individuals. Rather, the legislative line was
drawn between related and unrelated individuals, a distinction which Supreme
Court precedent clearly permits. See Moore and Belle Terre, supra. While a
local government cannot exclude handicapped individuals on the premise that
"they can go elsewhere,"10 the Fair Housing Act amendments do not require a
local government to permit handicapped individuals to live wherever they
desire. The Act provides only that handicapped individuals be given
meaningful access to housing in a nondiscriminatory fashion. While it may be
true that handicapped individuals have a greater need to reside in group settings,
the City of Athens has other zones that permit such access for handicapped and
other individuals.

43

We conclude that the zoning restriction as applied in this case is reasonable,

and thus the exemption is applicable. Appellants have adduced only weak
evidence of disparate impact upon handicapped persons. On the other hand, the
City has adduced evidence of strong and legitimate interests in controlling

density, traffic, and noise in its single-family residential districts, and in

preserving the residential character thereof. The City not only demonstrated
that its restriction upon the number of unrelated persons who may occupy a
dwelling is the only practical method of serving its legitimate interests but also
adduced evidence that comparable restrictions are commonplace in the zoning
regulations of counties and municipalities. The exemption contained in
3607(b)(1) relating to maximum occupancy limitations is an attempt on the part
of Congress to advance the interests of the handicapped without interfering
seriously with reasonable local zoning. In this case, the City has preserved
meaningful access for group homes for handicapped persons in its residential
areas. We conclude that the zoning restriction, as applied under the
circumstances of this case, is reasonable, and thus that the 3607(b)(1)
exemption is applicable.
44

Finally, appellants argue that the fact that the ordinance has some disparate
impact upon handicapped persons means, ipso facto, that the ordinance is
unreasonable. Our research has uncovered no support in the case law for that
proposition. To the contrary, the relevant case law suggests otherwise. In
Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), the
Supreme Court held that a Medicaid regulation, which had a disparate impact
upon handicapped persons, nevertheless did not violate 504 of the
Rehabilitation Act of 1973.11 The Supreme Court expressly rejected the
argument that every disparate impact discrimination would violate the Act:

45 the same time, the position urged by respondents--that we interpret 504 to reach
At
all action disparately affecting the handicapped--is also troubling. Because the
handicapped typically are not similarly situated to the non-handicapped,
respondents' position would in essence require each recipient of federal funds first to
evaluate the effect on the handicapped of every proposed action that might touch the
interests of the handicapped, and then to consider alternatives for achieving the same
objectives with less severe disadvantage to the handicapped. The formalization and
policing of this process could lead to a wholly unwieldy administrative and
adjudicative burden.... Had Congress intended 504 to be a National Environmental
Policy Act for the handicapped, requiring preparation of "Handicapped Impact
Statements" before any action was taken by a grantee that affected the handicapped,
we would expect some indication of that purpose in the statute or its legislative
history. Yet there is nothing to suggest that such was Congress' purpose. Thus, just
as there is reason to question whether Congress intended 504 to reach only
intentional discrimination, there is similarly reason to question whether Congress
intended 504 to embrace all claims of disparate-impact discrimination.
46

Id. at 298-99, 105 S.Ct. at 718-19 (footnote omitted).

47

In Metropolitan Housing Development Corp. v. Village of Arlington Heights,

558 F.2d 1283 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54
L.Ed.2d 772 (1978), the Seventh Circuit expressly rejected the argument that
once a racially discriminatory effect is shown, a violation of 3604(a) of the
Fair Housing Act is necessarily established. The Seventh Circuit held:

48 decline to extend the reach of the Fair Housing Act this far. Although we agree
We
that a showing of discriminatory intent is not required under 3604(a), we refuse to
conclude that every action which produces discriminatory effects is illegal. Such a
per se rule would go beyond the intent of Congress and would lead courts into
untenable results in specific cases.
49

Id. at 1290. To the same effect, see United States v. City of Blackjack,
Missouri, 508 F.2d 1179, 1186 (8th Cir.1974), cert. denied, 422 U.S. 1042, 95
S.Ct. 2656, 45 L.Ed.2d 694 (1975).

50

It is true that the context of the foregoing cases is not precisely the same as this
case. The above cases were addressing the issue of whether there was a
violation of the Rehabilitation Act of 1973 and the Fair Housing Act,
respectively. In the instant case, the issue is the application of an exemption
from the coverage of the Fair Housing Act. More precisely, the issue now
under discussion is whether an otherwise reasonable zoning restriction is
unreasonable, thus nullifying the exemption, solely because it has some
disparate impact on handicapped persons. We conclude, however, that the
rationale of the foregoing cases is relevant and persuasive. The fact that
Congress did not intend that every disparate impact discrimination would
violate the Rehabilitation Act of 1973 or the Fair Housing Act provides strong
evidence that Congress also did not intend that every zoning restriction based
on maximum occupancy would necessarily be unreasonable, and therefore
nonexempt under the Act, merely because the restriction had some disparate
impact upon handicapped persons. Thus, we reject appellants' final argument.12

51

For the foregoing reasons, the Athens, Georgia, zoning ordinance was
reasonable as applied in this case. We conclude that 3607(b)(1) exempts the
City's action from the coverage of the Act.13 Accordingly, the judgment of the
district court is

52

AFFIRMED.
KRAVITCH, Circuit Judge, dissenting:

53

The majority holds that the Athens ordinance restricting the maximum number

53

The majority holds that the Athens ordinance restricting the maximum number
of unrelated occupants living in homes zoned for single families does not
violate the Fair Housing Amendments Act. This conclusion stems from the
majority's belief that the ordinance falls within a statutory exemption
permitting reasonable maximum occupancy restrictions that apply equally to all
occupants.

54

In my view, the ordinance in question is neither reasonable nor an occupancy

limitation that applies equally to all individuals. In addition, I disagree with the
majority's disparate impact analysis which fails to recognize the specific
definition of discrimination contained in section 3604 of the Fair Housing
Amendments Act. I therefore respectfully dissent from the majority opinion.

I. THE EXEMPTION
55

The majority holds that the Athens ordinance falls within the section 3607(b)
(1) exemption of the FHAA because the ordinance is a reasonable occupancy
limitation. This result, however, cannot be reconciled with either the plain
words of the statute or its legislative history.
A. Maximum Occupancy Limitations

56

Section 3607(b)(1) exempts certain ordinances from the requirements of the

FHAA:

57
Nothing
in this subchapter limits the applicability of any reasonable local, State, or
Federal restrictions regarding the maximum number of occupants permitted to
occupy a dwelling.
58

(emphasis added). In its opinion, the majority seeks to reconcile this exemption
with case law implying that a maximum occupancy limitation would be
unconstitutional if applied to families. See Moore v. City of East Cleveland,
Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); Village of Belle
Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Doe v. City
of Butler, Pa., 892 F.2d 315, 321 (3d Cir.1989).1 This perceived constitutional
prohibition means that a municipality can only rely on the section 3607
exemption for ordinances which apply to unrelated occupants; an ordinance
which applies to families would be struck down as unconstitutional before an
FHAA analysis was ever begun. Consequently, if we do not find that the
Athens ordinance falls within the section 3607 exemption (because it
inequitably applies only to unrelated occupants), we will have created a
situation in which no ordinance can ever fall within the exemption. In other

words, we will have rendered the exemption meaningless.

59

The majority correctly notes that we are obligated to read the statute in a
manner that does not render it ineffectual. I agree that "[i]t is our duty to give
effect, if possible, to every clause and word of a statute, rather than emasculate
a section." United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 520,
99 L.Ed. 615 (1955) (citations omitted, emphasis added). The majority,
following the reasoning of Doe, argues that we will be violating this duty if we
"emasculate" the statute by finding that the Athens ordinance does not fall
within the section 3607 exemption.

60

Although I agree with the sentiments of the majority concerning our obligation
to "save" the exemption, I disagree with the majority's application of this
doctrine. Underlying our duty to give meaning to each word of a statute is the
presumption that in so doing we will most effectively fulfill the intent of
Congress. However, when more explicit evidence of Congressional intent is
available, it makes sense to give effect to such evidence rather than resort to an
artificial reading of a statute.

61

In this case, the legislative history unambiguously states that maximum

occupancy limitations are only permissible if "applied equally to all occupants,
and [do] not operate to discriminate on the basis of ... handicap." House Report
at 31; 1988 U.S.C.C.A.N. at 2192 (1988). The Athens ordinance does not apply
"equally" to all occupants; it only applies to unrelated occupants. We should not
ignore this clear statement of Congressional intent and squeeze the Athens
ordinance into an exemption from which it is so obviously excluded, even if
effectuating Congressional intent may mean rendering the exemption useless.2
Our mandate to render every word of a statute meaningful is not absolute. We
are only required to save a statute "if possible," Menasche, 348 U.S. at 538-39,
75 S.Ct. at 520, and in this case, the plain wording of the statute and the
legislative history makes the reading suggested by the majority impossible.
B. Reasonable Limitations

62

Even if the ordinance is a maximum occupancy limitation as defined by the

exemption, it cannot be considered "reasonable". Section 3607(b)(1).

63

The majority seeks to prove the reasonableness of the ordinance by balancing

the interests of the handicapped in access to housing against the municipality's
interests in maintaining the residential character of a particular neighborhood.
In an attempt to measure the harm to the handicapped population, the majority

engages in a discussion of the "discriminatory impact" of the ordinance. Rather

than recognize the specific definition of discrimination contained in the FHAA,
the majority uses a disparate impact analysis that not only ignores the mandate
of the statute, but is inappropriate in the context of evaluating discriminatory
impact on handicapped persons.
64

Section 3604(f)(3) of the FHAA states that:

For the purposes of this subsection, discrimination includes-65

66

(B) a refusal to make reasonable accommodations in rules, policies, practices,

or services, when such accommodation may be necessary to afford such person
equal opportunity to use and enjoy a dwelling.

67

(emphasis added). The statute explicitly equates discrimination with a failure to

make reasonable accommodations and nowhere implies that a disparate impact
analysis is appropriate. Indeed, a disparate impact analysis is particularly
inappropriate in the situation of handicapped individuals. Such an analysis
should be undertaken in situations in which groups that are entitled to equal
treatment are not being treated as equals, not when a protected group is entitled
to special treatment. Because handicapped people are entitled by law to
preferential treatment and because preferential treatment is necessary to afford
them equal access to housing, a disparate impact analysis is useless in this
context and in fact negates the entire intent of including handicapped people
within the FHAA.

68

In its opinion, the majority fails to mention the definition of discrimination set
forth in the statute. Instead, it opines that a) "[t]here was no attempt to establish
that the ordinance had a harsher effect on handicapped persons wanting to live
in group homes than on college students or other non-handicapped persons
desiring to live in group homes," and that b) in any case, the evidence of
disparate impact is "extremely weak."

69

The majority's disparate impact language appears to stem from the district
court's order which relied on Metropolitan Housing Development Corp. v.
Village of Arlington Heights, 558 F.2d 1283 (7th Cir.1977). Metropolitan holds
that the only way to prove a Fair Housing Act violation is by 1) a showing of
discriminatory intent towards the protected class, or 2) proving disparate impact
upon the protected class. Metropolitan, a racial discrimination case under the
old FHA, was decided well before the amendments to the Act which added
protection for handicapped people. The Metropolitan standard is superseded by

the FHAA, which specifically defines a violation with respect to handicapped

claimants.
70

71

Doe, which the majority relies upon to bolster its analysis, similarly is
inapplicable to this case because it involved an allegation of discrimination on
the basis of sex. In Doe, plaintiffs challenged, as sexually discriminatory, a
local zoning ordinance that limited the number of unrelated occupants to six
and consequently excluded a battered woman's shelter from the area. The court
upheld the ordinance reasoning that there was no greater impact on these
women than on a group of recovering male alcoholics seeking to establish a
group home in the same neighborhood. Id. at 323. Reliance on Doe is as
misplaced as reliance on Metropolitan; both these cases involve complaints of
inequitable treatment by groups who are entitled to be treated as equals. In the
case at hand, the potential occupants of the house are requesting inequitable
treatment, treatment to which they are entitled by operation of the FHAA.
It is irrelevant, therefore, that the appellants may have failed to prove disparate
impact. To establish a violation of the FHAA, they are only required to prove
discrimination, i.e., a failure of the city to make reasonable accommodations
that may be necessary to allow them equal access to housing. Section 3604(f)
(3).3
C. Balancing

72

The majority weighs the "weak evidence" of disparate impact on the

handicapped men against the governmental interest in controlling density,
traffic, and noise in its single-family residential districts. Even if the standard
required such a balancing of interests,4 the ordinance would still violate the
FHAA. It is the governmental interest here that is weak, as evidenced by the
municipal planning department's determination that the proposed group home
"would not burden the provision of municipal services such as transportation,
water, and sewage." In comparison, the interest of the handicapped men is
strong because they are being denied a statutorily defined right: the reasonable
accommodation necessary to afford them equal opportunity to use and enjoy
the particular dwelling.
D. Reasonable Accommodation

73

Prior to instigating this litigation, plaintiffs suggested two accommodations that

would have prevented the Athens ordinance from violating the FHAA. They
asked the city to redefine "family" to include groups of handicapped people

who may need to live in group situations because of their handicap. In the
alternative, they requested a spot exemption to allow this particular group home
to operate at the proposed located despite the single family zoning requirement.
Given the balancing discussion provided above, either of these routes must be
considered no more than the "reasonable accommodation" required by the
FHAA.
II. CONCLUSION
74

Because the Athens ordinance does not apply equally to all potential occupants
and because the city has discriminated against this group of recovering
alcoholics by not making reasonable accommodations, I believe the city has
violated the FHAA. I therefore respectfully dissent from the majority opinion.

The following are permitted uses in an RS-10 zone:

(1) Single-family;
(2) Parks and recreational areas publicly owned and operated;
(3) Horticulture activities and the raising of farm animals, including horses, for
noncommercial purposes;
(4) Governmental buildings--federal, state and local;
(5) Subdivision recreational areas owned, operated, and maintained by
homeowners' associations exclusively for the use of residents and their guests;
(6) Family day care homes;
(7) Accessory uses as defined by section 9-1-4 and in accordance with section
9-1-14, except limited to one hundred (100) feet of setback if located in the
front yard.
Athens, Ga., Code 9-1-143 (1987) (RS-10 Single-Family Residential District
(10,000 square feet)).

The parties stipulated at trial that the persons who would reside at the Ruth
Street property are handicapped within the meaning of 42 U.S.C. 3602(h) and
are not a threat to the community under 42 U.S.C. 3604(f)(9)

The definition of boarding house is:

A dwelling in which meals and lodging or just lodging are [is] furnished for
compensation to more than four (4) but not more than twenty (20) persons.
Provisions for meals may be made, provided cooking is done in a central
kitchen and not in individual rooms or suites. For purposes of zoning, a
boarding or rooming house shall be a multiple dwelling.
Athens, Ga., Code 9-1-4 (1987).
4

Appellants do not pursue their constitutional claims on appeal

Because we conclude that the city's action in this case falls within the
maximum occupancy limitation exemption, we need not decide the precise
contours of the proof which a plaintiff must adduce in order to establish a
violation under the Act. See Metropolitan Housing Development Corp. v.
Village of Arlington Heights, 558 F.2d 1283 (7th Cir.1977) (racial
discrimination), cert. denied, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772
(1978); United States v. City of Black Jack, Missouri, 508 F.2d 1179 (8th
Cir.1974) (racial discrimination), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45
L.Ed.2d 694 (1975); Familystyle of St. Paul v. City of St. Paul, Minn., 728
F.Supp. 1396 (D.Minn.1990) (discrimination against the handicapped), aff'd,
923 F.2d 91 (8th Cir.1991); Association of Relatives and Friends of AIDS
Patients (A.F.A.P.S.) v. Regulations & Permits Admin. (A.R.P.E.), 740 F.Supp.
95 (D.Puerto Rico 1990) (same); Baxter v. City of Belleville, Ill., 720 F.Supp.
720 (S.D.Ill.1989); see also Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712,
83 L.Ed.2d 661 (1985) (addressing an alleged violation of 504 of the
Rehabilitation Act of 1973)

The record establishes that the zoning limitation in this case is commonplace.
A majority of counties and municipalities limit the number of unrelated persons
who may reside in a dwelling. See District Court Opinion at 6; see also R2-237

In Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985),
the Supreme Court recognized the need to balance the interests of the
handicapped against those of the recipients of federal funds in the context of
504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U.S.C.
794:
[Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60
L.Ed.2d 980 (1979) ] ... struck a balance between the statutory rights of the
handicapped to be integrated into society and the legitimate interests of federal
grantees in preserving the integrity of their programs: while a grantee need not
be required to make "fundamental" or "substantial" modifications to
accommodate the handicapped, it may be required to make "reasonable" ones.

Alexander, 469 U.S. at 300, 105 S.Ct. at 720.

While we are construing the FHA and not the Rehabilitation Act of 1973, the
above cases are still useful to our analysis. Because the legislative history
likens the purposes of the FHA amendments to that of the Rehabilitation Act of
1973, see House Report at 18, we look to cases interpreting the Rehabilitation
Act in order to construe the FHA. Nonetheless, we note that "too facile an
assimilation of [ 504] law into [the Fair Housing Act] must be resisted."
Alexander v. Choate, at 293 n. 7, 105 S.Ct. at 716 n.7 (assimilation of Title VI
into 504).
8

The district court concluded that the City did not intend to discriminate against
handicapped persons, and appellants do not challenge this conclusion on
appeal. Appellants assert only that the City's application of the zoning
ordinance has a disparate impact on handicapped persons

The district court concluded that appellants had failed to prove disparate
impact. In light of our resolution of this case, we need not address appellants'
challenge to this conclusion. However, it is clear that the evidence of disparate
impact adduced by the appellants in this case is very weak, and this fact is
significant to our analysis

10

See Michael P. Seng, Discrimination against Families with Children and

Handicapped Persons under the 1988 Amendments to the Fair Housing Act, 22
J. Marshall L.Rev. 541, 560 (1989)

11

Cases interpreting the Rehabilitation Act of 1973 are useful in the FHA
context. See footnote 7, supra

12

In evaluating whether the zoning ordinance is "reasonable" as required by the

exemption, the dissent suggests that the reasonable accommodation provision
of the Act should apply, in addition to discriminatory intent and disparate
impact. We disagree; we do not think the reasonable accommodation provision
is per se applicable. The statute expressly provides an exemption from the Act;
if the exemption applies, then the other provisions of the Act, including the
reasonable accommodation provision, do not apply. In addition, the
construction suggested by the dissent would effectively nullify the exemption;
that is, under the dissent's construction, the only time the exemption could
apply is when there is no statutory violation in the first place. We need not
decide whether the failure to make an accommodation might in other
circumstances result in a determination that a zoning restriction was
unreasonable, and thus the exemption inapplicable. In other words, we need not
decide whether the concept of accommodation can in some circumstances
inform the concept of reasonableness. We need not decide that issue in this case

because it is clear that the accommodation sought by appellants would require

nothing less than an exception to the zoning restriction, an exception which is
not available to college students or others whose circumstances also make such
group living desirable. Under the circumstances in this case, we cannot
conclude that the city's refusal to make an exception for appellants is
unreasonable
13

Because we appear to be the first appellate court to rule on this particular

exemption, we take the time to distinguish a few cases where courts have found
violations of the Fair Housing Act because of, inter alia discrimination against
the handicapped. These cases, while not considering the exemption,
demonstrate that refusals to grant zoning variances or to rezone to
accommodate handicapped facilities are to be examined closely for
discriminatory intent or effect
In City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249,
87 L.Ed.2d 313 (1985), the Supreme Court held that a city's refusal to grant a
special use permit to allow construction of a group home for the mentally
retarded violated the equal protection clause of the fourteenth amendment. In
Cleburne, the city required special use permits for the operation of group homes
for the handicapped but did not require permits for other uses such as hospitals
and nursing homes in the same area. The city attempted to justify its
requirement on the grounds that it was concerned with the negative attitude of
property owners, that students from a school across the street from the
proposed site might harass the residents, and that the location was on "a five
hundred year flood plain." In addition, the city did put forth some concerns
about population density, but failed "to explain why apartment houses,
fraternity and sorority houses, hospitals and the like, may freely locate in the
area without a permit." 105 S.Ct. at 3260. The Court rejected the City's
arguments and concluded that the reasons given for the special use permits
were not rationally related to a legitimate government purpose. 105 S.Ct. at
3258.
The present case can be distinguished from Cleburne in two respects. First, this
case does not involve the requirement of a special use permit for the operation
of The Potter's House. Group homes for the handicapped are not singled out
and treated differently than any other dwelling that would house a large number
of unrelated persons. See also Doe v. City of Butler, Pa., 892 F.2d 315 (3d
Cir.1989) (distinguishing Cleburne on same ground). Second, while in
Cleburne, there were other group dwellings in the same area, there is no
evidence in the present case that the City of Athens has recently permitted other
groups to locate in a single-family zone. Therefore, the City's concerns relating
to density are more credible as the ordinance has been applied across the board

to uphold the residential character of the Ruth Street neighborhood. Thus, the
City of Athens ordinance does not appear to rest on an irrational fear of the
handicapped such that the FHA is violated.
Similarly, in Huntington Branch, NAACP v. Town of Huntington, 844 F.2d
926 (2nd Cir.), aff'd, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988), the
Second Circuit found that a town violated the Fair Housing Act by refusing to
rezone a parcel for multi-family housing. In Huntington, the overwhelmingly
white suburban town had an ordinance that, on its face, limited the private
construction of multi-family housing to one urban renewal area in town, where
52% of the residents belonged to a minority. 844 F.2d at 930. In addition, the
only justification for the ordinance proffered by the town was that it
encouraged developers to invest in that area of town. Under these
circumstances, the court of appeals found a disparate racial impact and a
violation of the FHA. The Supreme Court affirmed stating that "we are satisfied
on this record that disparate impact was shown, and the sole justification
proffered to rebut the prima facie case was inadequate." 109 S.Ct. at 277.
In distinguishing Huntington, we note that the ordinance involved in that case
could not be characterized as a maximum occupancy limitation within the
meaning of 3607. The ordinance there was not singled out for special exempt
status by Congress as was the Athens ordinance. In addition, multi-family
housing was relegated to one particular area of Huntington; such is not the case
in Athens. The group home proposed by appellants could be located under the
zoning ordinance in several other areas of Athens, including residential areas.
Finally, the Huntington court found a substantial adverse impact upon
minorities and weak and inadequate town justifications, 844 F.2d at 938, 940;
by contrast, the disparate impact in this case is extremely weak and the city's
legitimate interests are very substantial.
1

For purposes of this analysis, I assume that the majority is correct in its belief
that it would be unconstitutional to apply a maximum occupancy limitation to
families. A court might infer this result from case law; the Supreme Court,
however, has not directly addressed this issue. Indeed, one concurring justice in
Moore noted that a city could achieve the goal of population limitation through
a restriction that is reasonably related to the ends of preventing overcrowding,
i.e., absolute restrictions on the number of occupants, whether they be related
or unrelated. 97 S.Ct. at 1946, n. 16 (Stevens, J. concurring). In Doe, a noncontrolling Third Circuit case, the court did state, in dictum, that a maximum
occupancy restriction cannot constitutionally be applied to limit the number of
family members permitted to share a dwelling

Our reading of the exemption and the legislative history is particularly

appropriate given the lack of a clear Supreme Court statement of the

applicability of occupancy restrictions to families. See supra note 1. In addition,
it is important to note that a negation of the exemption would not prohibit
municipalities from effectuating the goal of population limitations. Maximum
occupancy ordinances not protected by the section 3607 exemption would
merely be subject to the provisions of the FHAA. In the case at hand, these
provisions would require the city to make reasonable accommodations like
those discussed infra
3

The language of the statute is liberal. Reasonable accommodation is required if

such concession may be necessary to a handicapped person's ability to use and
enjoy a dwelling. Section 3604(f)(3)

As mentioned above, the proper question is whether or not reasonable

accommodations have been made, not what the relative impacts are